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Appeals Court Upholds Kentucky Ban on Sex Transition for Minors During Ongoing Litigation

Appeals Court Upholds Kentucky Ban on Sex Transition for Minors During Ongoing Litigation

The court found no relevant differences between the challenged Kentucky law and a similar Tennessee law the court kept in place during litigation.

An appeals court again sided with a state defending its ban on sex transition procedures for minors. A three-judge panel of the Sixth Circuit Court of Appeals issued a 2–1 decision in Thornbury v. Kentucky, refusing to block the Kentucky law during ongoing litigation.

This decision came less than a month after the same court allowed a nearly identical Tennessee law to stand during the course of litigation in L.W. v. Skrmetti, as Legal Insurrection reported.

Kentucky Attorney General Daniel Cameron released a statement praising this decision, calling it “a win for Kentuckians, and a win for our values.”

The majority in Thornbury found the Kentucky law sufficiently similar to the Tennessee law in Skrmetti and noted the similarity of the legal arguments in both cases as factors weighing in favor of the Kentucky law:

That holding [in Skrmetti] controls here. Kentucky bans the same conduct as in Skrmetti. Plaintiffs bring the same Equal Protection and Due Process claims that, in Skrmetti, we held were unlikely to succeed. (citations omitted)

The plaintiffs pointed to two differences between the Tennessee and Kentucky laws, which they argued distinguished them and made Skrmetti inapplicable.

First, plaintiffs noted that the Tennessee law allowed minors already receiving care to continue receiving that care until March 31, 2024, while the Kentucky law mandated immediately weaning the minor off the treatments.

By mandating immediate weaning, the plaintiffs argued, the Kentucky law posed a greater risk of harm to minors currently receiving treatments. This argument did not persuade the majority:

Looking only at the text of the laws, plaintiffs have a point. But the facts presented to us in Skrmetti were no different from the facts here. There, the district court found that the plaintiffs’ doctors would begin weaning immediately. . . . [J]ust as in Skrmetti, Kentucky’s weaning period “lessens the harm” to minors “who wish to continue receiving treatment.” (citations omitted)

The dissent took issue with this reasoning, pointing to the majority opinion in Skrmetti, which the dissent argued relied on the Tennessee law’s continuing-care provision:

In Skrmetti, . . . the majority found the risk of irreparable harm diminished precisely because of Tennessee’s grace period. . . . It seems obvious that there is a tremendous difference between a statute like Tennessee’s . . . and one like Kentucky’s. . . (citations omitted)

The plaintiffs highlighted another difference between the facts of Skrmetti and Thornbury: disagreement between Kentucky officials over the ban purportedly not present in Skrmetti regarding the Tennessee law.

The majority was unpersuaded:

[T]he fact that some officials disagree with the ban does not change the analysis. As a sovereign state, Kentucky has an interest in creating and enforcing its own laws. The people of Kentucky enacted the ban through their legislature. That body—not the officials who disagree with the ban—sets the Commonwealth’s policies. (citations omitted)

Activists were undeterred after suffering their first setback in Skrmetti, as Legal Insurrection reported, and vowed to continue fighting after Thornbury, Communications Director Angela Cooper of the Kentucky ACLU told Legal Insurrection:

While we are disappointed in this decision, we remain undeterred, as it is not based on the full facts of the case. We’ll keep fighting alongside our partners on behalf of our clients, who are suffering irreparable harm under this decision.

The same three-judge panel decided Skrmetti and Thornbury, with an identical vote breakdown: Chief Judge Jeffrey Sutton and Judge Amul Thapar sided with the state, while Judge Helene White dissented.


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E Howard Hunt | August 3, 2023 at 6:16 pm

On the plus side, this delay should result in more debutante balls.

I would think that the Dobbs decision will carry a lot of weight here since it basically declared that there is no constitutional right to a particular medical procedure and that it would be left up to each state to regulate what medical procedures are permitted and which are not.

Another Win.